| People v Henehan |
| 2013 NY Slip Op 07877 [111 AD3d 1151] |
| November 27, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vJoseph W. Henehan, Jr., Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Broome County(Lehmann, J.), rendered February 24, 2011, upon a verdict convicting defendant of thecrime of endangering the welfare of a child.
In December 2008, the then-16-year-old victim attended an underage drinking party.During the course of the party, the victim consumed approximately 10 cans of beer andbegan vomiting. Defendant, who was a roommate of the men throwing the party, helpedclean up the mess and assisted the victim upstairs to his bedroom so she could lie down.According to the victim, defendant told her that he was going to lie down next to her onthe bed to "keep [her] company," however, when she woke up later that night, herpajama pants and underwear were pulled down to her knees and defendant was lyingbehind her on his side, thrusting his penis into her anus. The victim indicated that shetried to turn around, but felt weak and soon fell back asleep. She testified that when shewoke up the next morning, defendant was still in bed with her and, when he tried to puthis hands down the front of her pajama pants, she told him "no." The victim left with herfriends and reported the incident later that day.
Defendant was arrested and an indictment was handed up charging him with, asrelevant [*2]here, criminal sexual act in the first degreeand endangering the welfare of a child.[FN1] Following a jury trial, defendant was acquitted of criminal sexual act in the first degreeand the lesser included offense of attempted criminal sexual act in the first degree, butconvicted of endangering the welfare of a child. County Court denied defendant's CPL330.30 motion to set aside the verdict, and sentenced defendant to 60 days in jail andthree years of probation. This appeal ensued.
Initially, we are unpersuaded by defendant's claim that his CPL 330.30 motion to setaside the verdict was improperly denied. To the extent that it challenged the weight of theevidence, that issue is not a proper basis for a CPL 330.30 motion (see People vCarter, 63 NY2d 530, 536 [1984]; People v Bridges, 16 AD3d 911, 913 [2005], lvdenied 4 NY3d 884 [2005]). The motion was also properly denied with respect todefendant's argument that the jury's verdict is repugnant, because a repugnancy claim isuntimely if raised after the jury is discharged (see People v McCottery, 90 AD3d 1323, 1326 [2011],lv denied 19 NY3d 975 [2012]; People v Smith, 89 AD3d 1126, 1131-1132 [2011], lvdenied 18 NY3d 962 [2012]).[FN2]
The evidence was legally sufficient to support the count of endangering the welfareof a child. The victim, who was 16 years old at the time of the incident, testified thatdefendant subjected her to anal sexual conduct.[FN3] Witnesses confirmed that the victim was in bed with defendant all night behind theclosed door of his bedroom and DNA testing established that defendant's DNA, mixedwith the DNA of the victim and another unknown contributor, was present in the victim'sunderwear. This evidence was legally sufficient to establish that defendant exposed thevictim to sexual conduct, such that he knowingly "act[ed] in a manner likely to beinjurious to the physical, mental, or moral welfare" of the underage victim (Penal Law§ 260.10 [1]).
In a weight of the evidence review, this Court will view the evidence "in a neutrallight," [*3]with deference to the jury's credibilityassessments (People vIvery, 80 AD3d 874, 875 [2011], lv denied 16 NY3d 832 [2011]), and,"[i]f based on all the credible evidence a different finding would not have beenunreasonable, [we] must, like the trier of fact below, weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may bedrawn from the testimony" (People v Bleakley, 69 NY2d 490, 495 [1987][internal quotation marks and citation omitted]; see People v Spencer, 89 AD3d 1156, 1156-1157 [2011]).Defendant asserts that the jury did not find the victim's testimony credible, consideringthe acquittal on the criminal sexual act count. Because the only proof of anal sexualconduct was the victim's testimony, defendant asserts that there is no credible proof tosupport the charge of endangering the welfare of a child. We disagree. Defendant wascharged with criminal sexual act in the first degree pursuant to a subdivision thatrequired proof that, among other things, the victim was "incapable of consent by reasonof being physically helpless" (Penal Law § 130.50 [2]). The jury could havediscounted the proof of physical helplessness, which was sharply contested at trial, whilestill finding that the anal sexual conduct occurred, thereby supporting the charge ofendangering the welfare of a child (see People v Strickland, 78 AD3d 1210, 1211-1212[2010]). Viewing the evidence in a neutral light—given that a different verdictwould not have been unreasonable—and weighing the relative probative force ofthe conflicting testimony and the strength of the conflicting inferences to be drawn, wereject defendant's argument that the jury's verdict is against the weight of the evidence(see People v Bleakley, 69 NY2d at 495; People v Johnson, 107 AD3d 1161, 1163-1164 [2013],lv denied 21 NY3d 1075 [2013]; People v McFarland, 106 AD3d 1129, 1131 [2013]).
Defendant did not preserve his current challenge to the jury charge by eitherrequesting further definitions of terms or objecting to the charge that was given (seePeople v Holzer, 52 NY2d 947, 948 [1981]; People v Rogers, 94 AD3d 1246, 1251 [2012], lvdenied 19 NY3d 977 [2012]). Defendant's remaining arguments have beenconsidered and found to be unpersuasive.
Stein, J.P., Spain and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: A count in theindictment charging defendant with unlawfully dealing with a child in the first degreewas dismissed prior to trial.
Footnote 2: Although County Courtindicated in its decision denying the CPL 330.30 motion that defendant's repugnancychallenge was untimely, it also speculated, in dicta, that the jury might have founddefendant guilty of endangering the welfare of the child based upon the victim's claimthat he put his hand down the front of her pajama pants the morning after the party. Ourreview of the evidence and the court's ruling and jury instructions confirms, however,that this theory was not pursued at trial and the endangering the welfare of a child countwas premised solely upon the victim's allegation of anal sexual conduct.
Footnote 3: As previously noted(see n 2, supra), inasmuch as the People did not rely on the allegedtouching on the morning after the party as the basis for the endangering the welfare of achild count, we disagree with defendant's claim that proof of "sexual contact" (Penal Law§ 130.00 [3]) in connection with that alleged occurrence is necessary to sustaindefendant's conviction.